BUTLER v. KIMBROUGH

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

WAYNE H. BUTLER, )

)

Plaintiff, )

)

v. ) 1:21cv782

)

FORSYTH COUNTY SHERRIFF’S OFFICE, )

et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on Defendant Bobby

Kimbrough’s Motion for Summary Judgment (Docket Entry 19; see also

Docket Entry 24 (Memorandum in Support)). Defendant Kimbrough also

filed related sealing materials. (See Docket Entry 22; Docket

Entry 23.) For the reasons that follow, the Court should grant the

Motion for Summary Judgment and deny as moot the request for

sealing.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Pursuant to 42 U.S.C. § 1983 (“Section 1983”), Wayne Butler

(the “Plaintiff”), a pretrial detainee acting pro se, commenced

this action against several Defendants, including Defendant

Kimbrough, for acts and/or omissions amounting to deliberate

indifference to Plaintiff’s serious medical needs during his

detention at Forsyth County Law Enforcement Detention Center

(“FCLEDC”). (See Docket Entry 2 (the “Complaint”) at 1-30.) As

relevant here, Defendant Kimbrough, the Forsyth County Sheriff (id.

at 3), allegedly failed to follow statewide mandates for face

coverings as a result of the COVID-19 pandemic, in that he “made

wearing a mask a mere option left up to the staff” (id. at 15) and,

by designating masks as “contraband [for inmates]” (id at 16),

Defendant Kimbrough “prevented [Plaintiff] from being able to have

a mask in [his] possession” (id.). In addition, Defendant

Kimbrough’s policies allegedly fell short in meeting social

distancing mandates, in that “[Plaintiff] had over 6 cell mates and

was housed in over 7 dorms” (id. at 15), and Plaintiff tested

positive for COVID-19 on January 26, 2021, after “[he] was moved

into a cell with another detainee who had COVID” (id.).

Pursuant to 28 U.S.C. § 1915A(a), the Court (per the

undersigned) screened the Complaint to determine whether, inter

alia, it “fails to state a claim upon which relief may be granted,”

28 U.S.C. § 1915A(b)(1). (See Docket Entry 3 (the

“Recommendation”) at 1.) In connection with that review, the

undersigned concluded that the allegations from the Complaint

referenced above (i.e., those pertaining to alleged (1) mask

directives and (2) social distancing practices) adequately stated

a claim only against Defendant Kimbrough “based on deliberate

indifference to Plaintiff’s health during the pandemic.” (Id. at

4.)

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Accordingly, the undersigned recommended that the Court

dismiss all claims except those against Defendant Kimbrough. (See

id. at 8.) The Court (per now-Chief United States District Judge

Catherine C. Eagles) ultimately adopted the Recommendation,

ordering “that [ P]laintiff’s claims against [D]efendant Kimbrough

may proceed but that the remainder of the claims in the Complaint

are dismissed pursuant to 28 U.S.C. § 1915A for failing to state a

claim upon which relief may be granted.” (Docket Entry 10 at 2

(certain all-caps and bold typeset omitted).)

Thereafter, the Parties commenced discovery. (See Text Order

dated Aug. 1, 2022 (adopting Scheduling Order).) After discovery

closed, Defendant Kimbrough moved for summary judgment. (See

Docket Entry 19; see also Docket Entry 20 (First Affidavit); Docket

Entry 21 (Second Affidavit); Docket Entry 24 (Memorandum in

Support).) On May 1, 2023, the Clerk sent Plaintiff a letter

advising him of his “right to file a 20-page response in opposition

. . . within 30 days from the date of service of [Defendant

Kimbrough’s Motion for Summary Judgment] upon [him].” (Docket

Entry 25 at 1.) The letter specifically cautioned Plaintiff that

a “failure to respond or . . . file affidavits or evidence in

rebuttal within the allowed time may cause the [C]ourt to conclude

that [Defendant Kimbrough’s] contentions are undisputed and/or that

[Plaintiff] no longer wish[es] to pursue the matter,” as well as

that, “unless [Plaintiff] file[s] a response in opposition to the

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[Summary Judgment Motion], it is likely . . . summary judgment

[will be] granted in favor of [Kimbrough].” (Id.)

Plaintiff thereafter filed a Notice with the Court wherein he

indicated that “[he] only received [Defendant Kimbrough’s] notice

of intent [to file dispositive motions (Docket Entry 18)] . . .

[but] ha[d] not received the actual Motion for Summary Judgement

[in order] to file [his] Response in opposition.” (Docket Entry 26

at 1.) As a result, the Court (per the undersigned) ordered that

Defendant Kimbrough “re-serve Plaintiff with [the] Motion for

Summary Judgment (and attachments), [the First] Affidavit (and

attachments), [the Second] Affidavit (and attachments), [the

sealing materials], and [the] Memorandum [in Support].” (Text

Order dated May 30, 2023.) Two days later, counsel for Defendant

Kimbrough certified that “he did re-serve Plaintiff . . . by

depositing [the filings referenced in the May 30 Text Order] in the

United States Postal Service mail in an envelope labeled ‘legal

mail’ and addressed to [Plaintiff].” (Docket Entry 27 at 1.)

Then, on June 13, 2023, the Clerk sent Plaintiff a second letter

advising him of his right to respond, which included the same

cautions as the May 1 letter. (See Docket Entry 28 at 1 (including

same language as Docket Entry 25).)

Despite these warnings, Plaintiff did not respond. (See

Docket Entries dated June 13, 2023, to present.) Given that lack

of response and the fact that Plaintiff did not verify the factual

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allegations in the Complaint (see Docket Entry 2 at 38

(certification that “the factual allegations have evidentiary

support” for purposes of Federal Rule of Civil Procedure 11)),

Plaintiff’s bare allegations cannot controvert facts which the

Summary Judgment Motion or record establish. See Custer v. Pan Am.

Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993) (recognizing that

party’s failure “to respond to a summary judgment motion may leave

uncontroverted those facts established by the motion”).1 For the

reasons that follow, no genuine issue of material fact remains and

the Court should grant the Motion for Summary Judgment.

II. DISCUSSION

A. Summary Judgment Standards

“The [C]ourt shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A genuine dispute of material fact exists “if the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

1 By local rule, “[i]f a respondent fails to file a response

within the time required . . ., the motion will be considered and

decided as an uncontested motion, and ordinarily will be granted

without further notice.” M.D.N.C. LR 7.3(k). However, the Fourth

Circuit requires substantive review of even unopposed motions for

summary judgment. See Custer, 12 F.3d at 416 (“[T]he court, in

considering a motion for summary judgment, must review the motion,

even if unopposed, and determine from what it has before it whether

the moving party is entitled to summary judgment as a matter of

law.”).

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242, 248 (1986). The movant bears the burden of establishing the

absence of such dispute. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). In analyzing a summary judgment motion, the Court

“draw[s] all reasonable inferences in favor of the non-moving

party. Emmons v. City of Chesapeake, 982 F.3d 245, 250 (4th Cir.

2020). However, “[u]nsupported speculation is not sufficient to

defeat a summary judgment motion.” Felty v. Graves-Humphreys Co.,

818 F.2d 1126, 1128 (4th Cir. 1987)). Rather, the Court must “find

that a reasonable jury could return a verdict for [the nonmoving

party in order for] a genuine factual dispute [to] exist[] . . . .”

Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 959

(4th Cir. 1996).

B. Deliberate Indifference

Turning to the constitutional deprivation alleged here,

when the State by the affirmative exercise of its power so

restrains an individual’s liberty that it renders him unable

to care for himself, and at the same time fails to provide for

his basic human needs — e.g., food, clothing, shelter, medical

care, and reasonable safety — it transgresses the substantive

limits on state action set by the Eighth Amendment and the Due

Process Clause.

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 200

(1989) (emphasis added). Courts evaluate pretrial detainees’

conditions of confinement in state custody under the Due Process

Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S.

520, 535 (1979). “The due process rights of a pretrial detainee

are at least as great as the [E]ighth [A]mendment protections

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available to the convicted prisoner.” Martin v. Gentile, 849 F.2d

863, 870 (4th Cir. 1988).

In other words, “even though [a pretrial detainee’s

deliberate-indifference] claim arises under the Fourteenth

Amendment, [courts] have traditionally looked to Eighth Amendment

precedents in considering a Fourteenth Amendment claim of

deliberate indifference . . . .” Mays v. Sprinkle, 992 F.3d 295,

300 (4th Cir. 2021). The Eighth Amendment requires that prison

officials “provide humane conditions of confinement,” Farmer v.

Brennan, 511 U.S. 825, 832 (1994), which includes, among other

things, “reasonable measures to guarantee the safety of the

inmates,” id. For constitutional claims in this context, a

defendant displays deliberate indifference when he possesses

knowledge of the risk of harm to an inmate and knows that “his

actions were insufficient to mitigate the risk of harm to the

inmate arising from his medical needs.” Iko v. Shreve, 535 F.3d

225, 241 (4th Cir. 2008) (emphasis and internal quotation marks

omitted); see also Scinto v. Stansberry, 841 F.3d 219, 225 (4th

Cir. 2016) (“To prove deliberate indifference, plaintiffs must show

that ‘the official kn[ew] of and disregard[ed] an excessive risk to

inmate health or safety.’” (brackets in original) (quoting Farmer,

511 U.S. at 837)).

Of particular importance, “deliberate indifference entails

something more than mere negligence, . . . [but] something less

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than acts or omissions for the very purpose of causing harm or with

knowledge that harm will result.” Farmer, 511 U.S. at 835. “Tt

requires that a [defendant] actually know of and disregard an

objectively serious condition, medical need, or risk of harm.”

De’ lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (internal

quotation marks omitted); see also Iko, 535 F.3d at 241

(emphasizing that deliberate indifference’s “subjective component

. . . sets a particularly high bar to recovery”).

C. Liability Under Section 1983

“A state official can be liable in a § 1983 suit in three

ways: in his personal capacity, his official capacity, or in amore

limited way, his supervisory capacity.” King v. Rubenstein, 825

F.3d 206, 223 (4th Cir. 2016). As to personal liability, the

plaintiff must “show that the official, acting under color of state

law, caused the deprivation of a federal right.” Kentucky v.

Graham, 473 U.S. 159, 166 (1985). “As a general matter, a [state

actor] may incur [Section] 1983 liability only through affirmative

misconduct.” Randall v. Prince George’s Cnty., 302 F.3d 188, 202

(Ath Cir. 2002) (quoting Parratt v. Taylor, 451 U.S. 527, 535-36

(1981)). “[Section] 1983 must be ‘read against the background of

tort liability that makes a man responsible for the natural

consequences of his actions.’” Vinnedge v. Gibbs, 550 F.2d 926,

928 (Ath Cir. 1977) (quoting Monroe v. Pape, 365 U.S. 167, 187

(1961)). Accordingly, “it must be ‘affirmatively shown that the

official charged acted personally in the deprivation of the

plaintiff’s rights.’” Wright v. Collins, 766 F.2d 841, 850 (4th

Cir. 1985) (quoting Vinnedge, 550 F.2d at 928).

“Official-capacity suits, in contrast, generally represent

only another way of pleading an action against an entity of which

an officer is an agent.” Graham, 473 U.S. at 165 (internal

quotation marks omitted). “To state a[n official-capacity] cause

of action . . . a [S]ection 1983 plaintiff must plead (1) the

existence of an official policy or custom; (2) that the policy or

custom is fairly attributable to the municipality; and (3) that the

policy or custom proximately caused the deprivation of a

constitutional right.” Pettiford v. City of Greensboro, 556 F.

Supp. 2d 512, 530 (M.D.N.C. 2008).

As for supervisory liability, under Fourth Circuit authority,

a supervisor can be liable [under Section 1983] where (1) he

knew that his subordinate was engaged in conduct that posed a

pervasive and unreasonable risk of constitutional injury; (2)

his response showed deliberate indifference to or tacit

authorization of the alleged offensive practices; and (3) []

there was an affirmative causal link between his inaction and

the constitutional injury.

King, 825 F.3d at 224 (internal quotation marks omitted). For the

first element, “[e]stablishing a pervasive and unreasonable risk of

harm requires evidence that the conduct is widespread, or at least

has been used on several different occasions and that the conduct

engaged in by the subordinate poses an unreasonable risk of harm of

constitutional injury.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.

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1994) (internal quotation marks omitted). Relatedly, a plaintiff

ordinarily cannot satisfy the second element “by pointing to a

single incident or isolated incidents, for a supervisor cannot be

expected to promulgate rules and procedures covering every

conceivable occurrence within the area of his responsibilities.”

Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984) (internal

citation omitted). However, “[a] supervisor’s continued inaction

in the face of documented widespread abuses . . . provides an

independent basis for finding he either was deliberately

indifferent or acquiesced in the constitutionally offensive conduct

of his subordinates.” Id. And as for the third element, proof of

causation “may be direct . . . where the policy commands the injury

of which the plaintiff complains[,] [o]r the causal link may be

supplied by tort principle that holds a person liable for the

natural consequences of his actions.” Wellington v. Daniels, 717

F.2d 932, 936 (4th Cir. 1983).

D. Defendant Kimbrough’s Summary Judgment Motion

Defendant Kimbrough has sought summary judgment on the grounds

that he responded reasonably (and thus necessarily without

deliberate indifference) to the risks posed by the COVID-19

pandemic. (See generally Docket Entry 24 at 11-20 (highlighting

how the FCLEDC implemented CDC Guidance with respect to sanitation

and education, operations, screening procedures, quarantining and

social distancing, personal protective equipment, and testing).)

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Alternatively, Defendant Kimbrough has contended that, if

constitutional violations occurred, qualified immunity shields him

from liability. (See id. at 20-22 (citing Ross v. Russell, No.

7:20cv000774, 2022 WL 767093 (W.D. Va. Mar. 14, 2022)

(unpublished).) As already noted, Plaintiff did not respond to

Defendant Kimbrough’s arguments. (See Docket Entries dated June

13, 2023, to present.)

E. Analysis

Masking Directives

Defendant Kimbrough moves for summary judgment as to

Plaintiff’s allegations concerning masking directives at the

FCLEDC. (See Docket Entry 24 at 18.) As noted, the Complaint

contends that Defendant Kimbrough “made wearing a mask a mere

option left up to the staff” (Docket Entry 2 at 15) and, by

designating masks as “contraband [for inmates]” (id at 16),

“prevented [Plaintiff] from being able to have a mask in [his]

possession” (id.). The record refutes both these allegations.

In that regard, the record reflects that Plaintiff entered the

FCLEDC on May 4, 2020. (Docket Entry 20 at 2.) Prior to

Plaintiff’s arrival, the record indicates that the FCLEDC

instituted several measures to respond to COVID-19, including

“designat[ing] areas within the facility to house inmates suspected

of having COVID-19” (id. at 3), “screening jail staff, [] medical

staff [], custodians, or any other contractors who entered the

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facility [for elevated temperatures or symptoms of respiratory

illness]” (id.; see also Docket Entry 20-7 at 1), suspending

“public visitation . . . with the exception of attorney visits”

(Docket Entry 20-7 at 1), and screening new intakes for elevated

temperatures or “signs of respiratory illness” (Docket Entry 20 at

3; see also Docket Entry 20-8 at 2).

Most relevant to the masking allegations, by April 28, 2020,

the FCLEDC “required jail staff, inmate workers, medical staff and

any contract workers to wear N95 masks if they were assigned to a

new intake housing unit . . . [and] required all jail staff,

medical staff, inmate workers, and contractors to wear surgical

masks throughout the entire facility when interacting with

inmates.” (Docket Entry 20 at 5; see also Docket Entry 20-15;

Docket Entry 20-16.) FCLEDC officials repeatedly communicated

these directives to jail staff. (See Docket Entry 20-27 at 1

(“officers need[] to wear masks”); Docket Entry 20-28 at 1 (“[a]ll

staff[] are required to wear a mask . . . [i]t is mandatory that

masks are worn at all times”); Docket Entry 20-29 at 1 (“[p]lease

make sure everyone is wearing your masks . . . we [are] required to

wear them”).) Moreover, starting in December 2020, the FCLEDC

required staff to wear masks at all times “while inside the

facility, and not just [when the staff interacted with] others.”

(Docket Entry 20 at 8; see also Docket Entry 20-30 (memorandum

dated December 3, 2020 setting forth aforementioned policy).)

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Accordingly, the record undermines the Complaint’s contention that

Defendant Kimbrough “made wearing a mask a mere option.” (Docket

Entry 2 at 15.) On the contrary, by the time Plaintiff arrived at

the FCLEDC, staff had received a directive to wear masks whenever

interacting with inmates (see Docket Entry 20 at 5), and, by

December 2020, had to wear masks at all times, even when not

interacting with inmates (see id. at 8). Plaintiff’s

“[u]nsupported speculation” to the contrary does not suffice at the

summary judgment stage. Felty, 818 F.2d at 1128.

As for the Complaint’s other mask-related allegation, the

record similarly discredits the notion that Defendant Kimbrough

either designated masks as “contraband [for inmates]” (Docket Entry

2 at 16), or took any measure to “prevent[ Plaintiff] from being

able to have a mask in [his] possession” (id.). On that front, the

record reflects (as an initial matter) that at least some inmates

(inmate workers) received masks prior to Plaintiff’s arrival at the

FCLEDC, and had to wear them whenever at work. (See Docket Entry

20 at 5; Docket Entry 20-15 at 1.) The record further shows that,

after certain staff (but no inmates) tested positive for COVID-19

on June 12, 2020 (approximately one month after Plaintiff’s

arrival), the FCLEDC provided surgical masks to all inmates, and

instructed them to wear masks for the following fourteen days.

(See Docket Entry 20 at 6; Docket Entry 20-20 at 1.) Then, the

FCLEDC, beginning in October 2020, instituted a policy of providing

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masks to all new inmates. (See Docket Entry 20-31.) Following

that, beginning on December 8, 2020, the FCLEDC required inmates to

wear masks any time they left their cells. (See Docket Entry 20 at

7; see also Docket Entry 20-39.) The FCLEDC reiterated this policy

on January 8, 2021, and further provided that inmates could

exchange used surgical masks for new ones at a rate of two per day.

(See Docket Entry 20-40.)

In sum, the available record evidence disproves the

Complaint’s contention that Defendant Kimbrough ever designated

masks as contraband or sought to prevent Plaintiff from possessing

and/or wearing one. (See Docket Entry 2 at 16.) Rather, the

record establishes that the FCLEDC provided masks to inmate workers

beginning in April 2020 (see Docket Entry 20 at 5; Docket Entry 20-

15), all inmates in June 2020 (perhaps only temporarily as a

responsive measure to a rise in COVID-19 cases among staff) (see

Docket Entry 20 at 6; Docket Entry 20-20 at 1), all new inmates

starting in October 2020 (see Docket Entry 20-31), and all inmates

in December 2020 (along with the requirement that the inmates wear

those masks) (see Docket Entry 20-39). Although the FCLEDC stepped

up its masking policy from April until December 2020, no record

evidence suggests that Defendant Kimbrough ever prevented Plaintiff

from procuring a mask; in fact, the record indicates that Plaintiff

never submitted an inmate request for a mask. (See Docket Entry 20

at 11.) Plaintiff’s unverified allegations to the contrary do not

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suffice for purposes of summary judgment. See Custer, 12 F.3d at

416. Thus, under the circumstances, the Court should conclude that

no reasonable fact-finder could attribute deliberate indifference

to Defendant Kimbrough in his personal, official, or supervisory

capacities as to the mask-aspect of any deliberate indifference

claim.

Social Distancing

The Memorandum in Support also targets the Complaint’s

allegations concerning social distancing. (See Docket Entry 24 at

13-16.) As noted, the Complaint’s allegations on that topic

include that “[Plaintiff] had over 6 cell mates and was housed in

over 7 dorms” (Docket Entry 2 at 15), and that Plaintiff tested

positive for COVID-19 on January 26, 2021, after “[he] was moved

into a cell with another detainee who had COVID” (id.). The record

again refutes the latter allegation, and, the former allegation

(standing alone) cannot as a matter of law support a claim for

deliberate indifference.

First, the record reflects that Plaintiff did test positive

for COVID-19 on January 26, 2021. (See Docket Entry 20 at 10.)

However, this positive test did not follow his placement “into a

cell with another detainee who had COVID” (Docket Entry 2 at 15).

Rather, the record shows that, from September 15, 2020 to January

11, 2021, the FCLEDC housed Plaintiff in the same cell, and he did

not share that cell with another inmate. (See Docket Entry 20-55

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at 1.) Then, on January 11, 2021, Plaintiff moved into a different

cell, but he again had the cell to himself. (See id. at 2.) The

next day, January 12, Plaintiff moved into another cell and,

although another inmate moved into that cell on the same day, the

record shows that Plaintiff only stayed in this cell for

approximately three hours, and moved out before the other inmate

moved in. (See id. at 3.) Next, Plaintiff moved into a different

cell on the evening of January 12. (See id. at 4.) Another inmate

had previously resided in this cell, but the record again shows

that the inmate moved out prior to the time at which Plaintiff

moved in. (See id.) Plaintiff thereafter stayed in that cell by

himself for the two weeks preceding his positive test for COVID-19.

(See id. at 5.)

Accordingly, the record establishes that Plaintiff never moved

“into a cell with another detainee who had COVID [prior to

Plaintiff testing positive].” (Docket Entry 2 at 15.) In fact,

Plaintiff did not share a cell with anyone for (at least) four

months prior to January 26, 2021. (See generally Docket Entry 20-

55.) Although, on January 12, he moved out of and into a cell on

the same day that other inmates also resided in that cell, the

record shows that his time never overlapped with another inmate in

either cell. (See id. at 3-4.) Moreover, Plaintiff subsequently

remained in the second cell, without a cell mate, for two weeks

prior to his positive COVID-19 test. (See id. at 4.) Thus, the

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Court should determine that no reasonable factfinder could conclude

that a policy of Defendant Kimbrough’s caused Plaintiff to move

into a cell with another detainee who had COVID.” (Docket Entry 2

at 15.)2

The foregoing record evidence undermines three of the four

allegations from the Complaint, leaving only Plaintiff’s assertion

that “[he] had over 6 cell mates and was housed in over 7 dorms

which clearly deprived [him] of the reasonable chance to exercise

social distancing.” (Id.) That allegation, by itself, does not

suffice to support a claim for deliberate indifference as a matter

of law.

First, to put that statement in context: Plaintiff resided at

the FCLEDC for approximately 17 months prior to filing the

Complaint. (Compare Docket Entry 20 at 2 (documenting Plaintiff’s

2 Given this recommended disposition, the Court need not

examine certain inmate medical records which Defendant Kimbrough

submitted under seal along with the Motion to Seal. (See Docket

Entry 22; Docket Entry 23.) To that point, the cell transfer logs

(Docket Entry 20-55) adequately demonstrate that Plaintiff did not

move into a cell with another inmate prior to his positive COVID-19

test. Thus, because the Court does not have to review the medical

records in order to resolve this aspect of the Motion for Summary

Judgment, “‘they play [no] role in the adjudicative process,”

Stafford v. Stout, No. 1:20-CV-731, 2023 WL 3006102, at *10

(M.D.N.C. Apr. 19, 2023) (citing In re Application of U.S. for an

Ord. Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d 283, 290 (4th

Cir. 2013)), recommendation adopted, No. 1:20-CV-731, 2023 WL

4707182 (M.D.N.C. July 24, 2023). Consequently, “[r]ather than

wade into thorny issues of patient privacy, the Court should

instead conclude that the public right of access does not attach to

these non-adjudicative documents, deny the Motion to Seal as moot,

and direct the Clerk to remove Plaintiff's medical records (in

unredacted format at Docket Entry [23]) from the Docket.” Id.

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arrival on May 4, 2020), with Docket Entry 2 at 1 (bearing filing

date of October 8, 2021).) In addition, Plaintiff does not allege

that he ever resided with more than one cell mate at the same time

(see id. at 15), and the record does not reflect any periods with

multiple cell mates (see Docket Entry 20-55 (documenting four-month

period where Plaintiff had no cell mate)). As such, Plaintiff

effectively maintains that the impossibility of social distancing

in a jail setting evinces deliberate indifference on the part of

Defendant Kimbrough.

“However, the inability of detainees to practice social

distancing at all times does not, without more, demonstrate that

[jail officials] have deliberately disregarded the[] risks [of

COVID-19].” Duvall v. Hogan, No. 94-CV-2541, 2020 WL 3402301, at

*14 (D. Md. June 19, 2020). To repeat, the subjective element of

a deliberate indifference claim “sets a particularly high bar to

recovery.” Iko, 535 F.3d at 241. In light of that high bar,

“[f]ailing to do the impossible doesn't evince indifference, let

alone deliberate indifference.” Swain v. Junior, 961 F.3d 1276,

1287 (11th Cir. 2020) (vacating district court injunction that

rested in part on conclusion that jail’s “inability to ensure

adequate social distancing constituted deliberate indifference”

(internal quotation marks omitted)).

Because “[s]pace constraints [in jail settings] do not allow

for the more preferable degree of social distancing that exists in

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the community at large,” Mays v. Dart, 453 F. Supp. 3d 1074, 1095

(N.D. Ill. 2020), “there is no basis in the record to conclude that

planning for anything less than six-foot distancing between all

prisoners (and staff) at all times constitutes deliberate

indifference,” Plata v. Newsom, 445 F. Supp. 3d 557, 565 (N.D. Cal.

2020). At bottom, “[i]n this case, the undisputed summary judgment

record establishes that [Defendant Kimbrough reasonably] responded

to the COVID-19 pandemic by putting in place measures designed to

control the spread of COVID-19 in the [FCLEDC].” Horton □□□

Holloway, No. 5:20-CV-05138, 2021 WL 7185222, at *13 (W.D. Ark.

Dec. 1, 2021) (unpublished), recommendation adopted, No.

5:20-CV-5138, 2022 WL 118418 (W.D. Ark. Jan. 12, 2022)

(unpublished). Plaintiff, in failing to respond, has adduced no

material evidence to the contrary. See Custer, 12 F.3d at 416. As

a result, the Court should conclude that no reasonable fact-finder

could attribute deliberate indifference to Defendant Kimbrough in

his personal, official, or supervisory capacities as to the social

distancing-aspect of any deliberate indifference claim.’

3 Given that proposed resolution, the Court need not reach

qualified immunity as an alternative basis for granting judgment

for Defendant Kimbrough. See Brooks v. Johnson, 924 F.3d 104, 119

n.6 (4th Cir. 2019) (“recogniz[ing] the ‘special problem’ raised

when the objective qualified immunity standard is applied to an

Eighth Amendment violation that requires wrongful intent in the

form of ‘deliberate indifference’” (quoting Rish v. Johnson, 131

F.3d 1092, 1098 n.6 (4th Cir. 1997))).

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CONCLUSION

Because the record lacks evidence from which a reasonable

fact-finder could conclude that Defendant Kimbrough exhibited

deliberate indifference to Plaintiff’s serious medical needs or

risk of harm, Defendant Kimbrough has established entitlement to

judgment as a matter of law.

IT IS THEREFORE RECOMMENDED that the Summary Judgment Motion

(Docket Entry 19) be granted, the Motion to Seal (Docket Entry

22) be denied as moot, and that the medical records (Docket Entry

23) be stricken.

This 11th day of August, 2023.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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